Between Facts and Norms - Contributions to a ... - Blogs Unpad

43 1Paradigms of Lawwas to protect the legal freedom of the citizen against encroachmentsof a state apparatus restricted to preserving the public order.But as soon as the administration was enlisted by the social-welfarelegislature for tasks of planning and political regulation, the statutein its classical fo rm could no longer adequately program administrativepractice. Supplementary to the classical administration(Eingrijj.5verwaltung) , whose activity was characterized as reactive,bipolar, and selective, 72 there arose administrations whose practicewas entirely different. The "service" administration (Leistungsverwaltunr;)of the regulatory state, which assumes tasks of providingbasic services and infrastructure, planning, and risk preventionhencethe tasks of political planning and regulation in the widestsense-acts in a future-oriented and expansive manner; moreover,its interventions affect the relationships among citizens and socialgroups at an ever more concrete level. Modern administrativepractice displays "such a high degree of complexity, situationaldependency, and uncertainty that it cannot be completely anticipatedin the imagination [of the legislature] nor, consequently,conclusively determined at a normative level. Here the classicaltype of legal norm breaks down to a large extent. For this norm isa conditional program that defines offenses by listing those conditionsunder which the state is entitled to intervene; in the legalconsequences it stipulates the measures the state may employ."73The spectrum of legal forms has expanded to include speciallegislation, experimental temporary laws, and broad regulatorydirectives involving uncertain prognoses; the influx of blanketclauses, general clauses, and indefinite statutory language into thevocabulary of the legislator has sparked the discussion over the"indeterminacy of law" that worries American as much as Germanjurisprudence.74Here I am interested in how the materialization of law hasaffected the functional separation of powers. 7" I have alreadydiscussed in some detail the criticism of the judicial developmentoflaw, which, having expanded into an implicit legislation, endangersthe rationality of adjudication as well as the basis of judiciallegitimacy.7" Still more disturbing is the lack of constitutionalcontrols on administrative activity. The formerly authoritarianrelation between the administration and its clients was long ago